Tuesday 9 May 2000

Unjustly accused can't shrug it off

For years through this column I've bleated about the injustice to persons left holding the legal bills after proving to a criminal court they never should have been charged in the first place.

Sometimes it's a false accusation, and sometimes it's poor police work, but too many times innocent people are financially ruined through no fault of their own. They have been ground through a criminal-justice system run by human beings, who like the rest of us, make errors. The difference is accountability. Legal industry insiders don't have that.

It's an observation that raises little or no reaction. A story about an injured dog will generate sympathy in quantity. A story about a person ruined by the court system seldom generates a shrug. I last visited the topic April 20 in an interview with retiring Crown attorney Andrejs Berzins. That story generated one piece of input.

If I thought court insiders were comfortable with the situation, any doubt was dispelled by a copy of a speech dropped on this desk after the Berzins column. It was delivered to the Criminal Lawyers Association at a national gathering last year. Speaker was Justice Michael Moldaver of the Ontario Court of Appeal, who was on the short list before Justice Louise Arbour's appointment to the Supreme Court of Canada.

"A tide of ignorance and apathy has swept over this country for far too long. The time has come to bring home to the public, in no uncertain terms, just how destructive the criminal process can be and why it is that those who have been wrongly accused of a criminal offence may be deserving of some measure of compensation, even though they have been acquitted after trial or the charges have been withdrawn along the way.

"No one is immune from the possibility of wrongful accusation, and even more tragically, wrongful conviction."

In high-profile cases of wrongful conviction, like David Milgaard's, millions of dollars in compensation is paid.

"But are we as a society prepared to go further ... to consider the possibility of compensating persons who have been wrongfully accused?"

That there isn't a public call for this, Judge Moldaver said, leaves him thinking "that our education system has failed us badly. I recall with displeasure, spending days and weeks learning how plants reproduce ... and that sulphuric acid causes sugar to turn black. Not one moment was spent learning about basic rights and freedoms, or the workings of our justice system."

One of the points I've focused on in more than three decades of writing columns, was that we give our police two powerful weapons: guns and the power to arrest and charge. We pay attention to only the gun. If an officer uses a gun, there's a demand for accountability even if there's little or no damage. If an officer's investigative aim is bad and an innocent person is tossed into the expensive court system, the damage can be severe. A person's reputation, their whole life, can be ruined.

Shrug. Or as Judge Moldaver says: "The citizen who has successfully withstood the tremendous ordeal of a criminal prosecution leaves the courtroom without so much as an apology."

That includes the marital conflict turned ugly. The court system is open to abuse by an angry partner who can launch serious charges. The partner facing those charges may lose not only a lot of money, but lingering emotional damage is usually inflicted, which, like a missing limb, just can't be forgotten.

The party that launched the accusation has little to fear in the way of accountability. It's a silly little war in which the person who fires the first shot wins. The accuser has the free services of prosecutors, and the accused, unless penniless and accepted by the legal aid system, can be financially ruined.

The system continues to struggle for a fair answer, and it could be that the problem is that it's looking inward. There's no answer in the legal industry.

The insurance industry could be a better place to look. If there were available insurance that would compensate me for losses incurred through proving my innocence, I would line up to buy it.

Dave Brown is the Citizen's senior editor. His e-mail address is dbrown@thecitizen.southam.ca .